R. v. Douglas

2017 BCSC 2583 R. v. Douglas IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Douglas, 2017 BCSC 2583 Date: 20170609 Docket: 62861 Registry: Chilliwack Regina v. Aaron David James Douglas Before: The Honourable Mr. Justice Verhoeven Oral Ruling re Corbett Application Counsel for the Crown: C.A. McPherson, Q.C. A.M. Mandell J.C. MacRae Counsel for the Accused: K.R. Beatch C.S. Arnason Place and Date of Trial/Hearing: New Westminster, B.C. June 8, 9, 2017 Place and Date of Judgment: New Westminster, B.C. June 9, 2017 [1] THE COURT: The defence brings a Corbett application in order to prohibit the Crown from cross-examining the accused on his criminal record, should he choose to testify. The defence relies on the court's residual discretion under s. 12 of the Canada Evidence Act, R.S.C. 1985, c. C-5, and common law. [2] In the alternative, the defence argues that if the probative value of the record is found to exceed potential prejudice, then some of the charges should be edited out or in other words redacted from the record. The defence refers in particular to a weapons possession conviction occurring July 24, 2014 that the defence contends is too similar and too recent to the charges at hand. The defence also argues that other offences should be excluded. [3] Mr. Douglas is charged with three counts on the indictment. Counts 1 and 2 are first degree murder of Richard Blackmon and Tyler Belcourt. Count 3 is of attempted murder of Penni White. All offences are alleged to have occurred August 7, 2014, at or near Chilliwack, B.C. [4] The Crown has closed its case before the jury. [5] The defence concedes that the usual rule is that any witness may be cross-examined on his or her criminal record, and that rule includes the accused. The accused is in no better position in that respect than any other witness. The defence acknowledges that Mr. Douglas's credibility is at issue in the trial. [6] The defence relies upon Corbett, in which the Supreme Court of Canada held there is a discretion conferred on the trial judge to prohibit cross-examination, if the mechanical application of the rule under the Evidence Act would undermine the accused's right to a fair trial. The defence acknowledges that the onus is on the accused to show that the cross-examination on his record would be unfair in this way. [7] The Crown opposes the application. The Crown argues that the record is probative for at least the following reasons: (a) there has been vigorous attack on the character of the victims Richard Blackmon and Tyler Belcourt, and witnesses Matt Dalke, Mike Hilliard, Maureen Prince, Theresa Lajeunesse, Cole Berard and Penni White, and the jury requires this evidence to prevent the jury from being left with an unbalanced view of the accused -- in other words, that while they are hardened criminals, he has an unblemished past; (b) that to conceal the prior criminal record of the accused would deprive the jury of information relevant to the issues of credibility; and (c) the jury would be presented with a misleading picture. [8] The Crown argues that given the milieu of the case and the backgrounds of the Crown witnesses, a number of whom had been friends with the accused in years past, it would come as no surprise that, like many of these witnesses, the accused also has a criminal record. [9] The Crown also submits that any concerns about the prejudicial nature of the evidence is best addressed through instructions to the jury, both during the trial and at the time of the final charge. [10] The Crown also opposes editing or redaction of the record. [11] In this case, the identity of the accused is not in issue, and has now been admitted. The defence is not therefore expected to contest that Mr. Douglas entered the apartment where the shootings took place with a loaded handgun and shot the two deceased victims, as well as Ms. White, the third victim. [12] The issues, as I expect them to be, relate to self-defence and mens rea, including issues of intoxication; thus the credibility of Mr. Douglas in that context will be critical. The issues will relate to why Mr. Douglas went to the apartment with the loaded weapon, and why he shot the victims. [13] Although there has been no voir dire, as I observe is the recommended procedure, based on R. v. Madrusan, 2005 BCCA 609, with reference to para. 13, referring to R. v. Underwood, [1998] 1 S.C.R. 77, I have been informed that the defence case will consist of Mr. Douglas only, and the issues are as I have described them. [14] I would expect, therefore that Mr. Douglas would testify, denying planning and deliberation, denying the intent required for murder, and denying intent to kill Penni White, and to give evidence of factors leading to self-defence and intoxication arguments. In so doing, I expect that Mr. Douglas would take issue with the evidence of the Crown witnesses who were in the apartment, and testified about the shootings. Those would be Matt Dalke, Cole Berard and Penni White, the victim referred to in the third count. [15] I expect he would also take issue with the evidence of other Crown witnesses as to events leading up to the shootings, in particular at the Woodbine residence preceding the shootings. Those witnesses are Mike Hilliard, Maureen Prince, Theresa Lajeunesse and again Matt Dalke. [16] A concise summary of the applicable principles relating to Corbett application is set out in the decision of Mr. Justice Ehrcke in R. v. J.M.C., 2011 BCSC 1217, at paras. 7 and 8, where, after referring to a number of authorities set out in para. 6 of the decision, Mr. Justice Ehrcke said this, at paras. 7 and 8: [7] I shall not recite the various principles discussed in those and other cases. They are well known. On the one hand, the jury should not be deprived of the tools it requires to form an accurate assessment of the credibility of the accused as a witness, and his criminal record is, pursuant to s. 12 of the Canada Evidence Act, a legitimate part of that assessment. On the other hand, every accused is entitled to a fair trial, and if cross-examination of an accused on his full record would deprive him of that right, then a way must be found to ensure that his fair trial rights are not infringed. Each case must be decided on its own specific circumstances, with the Court weighing the probative value of the evidence against its prejudicial effect. [8] In carrying out this weighing process, crimes of dishonesty may have more probative value with respect to credibility than other offences. On the other hand, all offences may have some probative value to the extent that they demonstrate a witness' willingness to flout the laws of society. More recent convictions may be more relevant than older convictions. On the other hand, a lengthy record, with a persistent pattern of offending, may have greater significance in assessing credibility than a very short or sporadic record. As to prejudicial effect, convictions for offences that are very similar in character to the offences for which an accused is on trial may carry a greater risk of prejudice than convictions for unrelated matters. [17] One of the cases referred to by Ehrcke J. in J.M.C. is the decision of the Court of Appeal in R. v. Fengstad and Stewart, where the Court said as follows, at para. 27: In the context of this case, the evidence of the appellants' records, which demonstrated a persistent involvement in serious crimes, would properly alert the jury to the fact that these men had an abiding and repeated contempt for the laws of this land, a fact which the jury were entitled to consider in assessing the credibility of the appellants. To expunge a number of convictions, or to order that no cross-examination could take place on the record at all, would be to leave the jury with a false impression as to the circumstances surrounding the reliability and veracity of the appellants. ... [18] That paragraph was relied upon by the Crown in this case, and it is a point to which I will return. [19] Another useful authority, referred to by the defence, is the decision of Madam Justice Lynn Smith in R. v. Gill, 2008 BCSC 96. In that case, at para. 11, the court set out a number of factors arising out of the decision of the Supreme Court of Canada in Corbett: The majority agreed that the factors identified by La Forest J., dissenting (who would have excluded cross-examination of Corbett on his record), were useful. The same factors have been referred to consistently in the authorities since Corbett. Those factors, bearing on the probative value and prejudicial effect of a previous conviction, are: 1. the nature of the previous conviction (La Forest J. referred to Gordon v. U.S., 383 F. 2d 936 at 940 (1967), which states that acts of deceit, fraud, cheating or stealing will reflect adversely on a person's honesty and integrity, while acts of violence generally have little or no direct bearing on honesty and veracity); 2. the similarity of the previous conviction to the conduct for which the accused is on trial (the more similar the prior offence, the greater the prejudice harboured by its admission); 3. the remoteness or nearness in time of the previous conviction to the present charge (and whether the accused has led a legally blameless life for a period of time since the conviction); and 4. the risk of presenting a distorted picture to the jury (which may arise where there has been a deliberate attack upon the credibility of a Crown witness and where the resolution of the case boils down to a credibility contest between the accused and that witness). [20] I refer now to the criminal record of Mr. Douglas. The record sets out a total of 26 offences, so the record is a lengthy one. The first offence noted has an offence date of July 27, 2002, and the final offence date referred to is December 22, 2012, hence not long prior to the shootings in question. The 26 offences therefore span a period of approximately ten years. It is therefore a large number of offences over a relatively compressed time period. [21] The offences can be categorized in the following manner. I have numbered the offences from one to 26. There are four offences for obstruction of peace officers. Those are numbered using the conviction list that I have, and numbering them in sequence as shown on the document. Those are numbers 1, 5, 8 and 17 -- four offences. There are two offences involving flight from a police officer. Those are offences 15 and 21. There are four offences that could be described as property offences. Those are 3, 4, 6 and 18. There are eight offences involving breaches of court orders. Those are 2, 12, 13, 14, 16, 22, 24 and 26. [22] Offence 26 is, in this categorization, a hybrid in that the offence is possession of a firearm, contrary to court order. That was the final offence. The offence date is December 22, 2012. It could be considered a breach offence and also a firearms offence. [23] There are four drug offences. Those are 7, 10, 19 and 20. There are two distinct firearms or weapons offences. Those are 9 and 11. Specifically offence 9 is possession of a non-firearm, knowing it to be unauthorized. That occurred August 19, 2007. I take that to be an offence involving possession of a prohibited weapon of some sort, such as a prohibited knife. The other offence, number 11, is on January 24, 2008, and is unauthorized possession of a firearm. That offence led to a ten-year prohibition against possession of firearms. Thus, it is connected to the final offence referred to, number 26, which as I said occurred December 22, 2012, and was for possession of a firearm contrary to a court order. [24] There are two other offences. Those are numbers 23 and 25. Twenty-three is operating a motor vehicle while disqualified, occurring April 23, 2012, and 25 is fishing without the authority of a licence on July 28, 2012. [25] Applying the principles that I have set out, I have concluded that the application should be denied. Cross-examination will be permitted on the criminal record, without redaction. [26] The considerations I have with respect to those conclusions are as follows. While there are only a few of the offences that can be considered classically to be offences involving dishonesty -- for example the property crimes which on my numerical sequence is 3, 4, 6 and 18, there is a persistent and consistent record of offending which may be taken by the jury -- quoting from J.M.C. -- to "demonstrate a witness's willingness to flout the laws of society". Similarly, the principle applies that, "a lengthy record, with a persistent pattern of offending, may have greater significance in assessing credibility than a very short or sporadic record". [27] There are, therefore, numerous breaches of court orders, obstructing the police officers, flight from police officers, and the drugs and weapons charges. All may be taken as indications of the attitude of the accused towards obedience to the law and court orders, and a willingness to flout the laws of society. [28] The record is not dated. There are, as I mentioned already, a large number of offences over a fairly limited time span, all within roughly 12 years of the offence date here. I refer to the quote I made earlier from Fengstad in that regard, and I apply that quote here. [29] The previous convictions are not similar to the offences charged. There is almost no crime of violence on the record, except with respect to the robbery, about which there is no detail. [30] The defence argues that the weapons offences are especially prejudicial in view of similarity. I do not agree with that submission. There is no issue in this case that Mr. Douglas carried a loaded weapon and used it. The fact that he had prior weapons offences will likely be of practically no significance to the jury. [31] The risk of prohibited reasoning in this case is very low in the context of the issues and the facts, as I expect the jury to have them, even in the absence of appropriate instructions, which the jury will of course receive. [32] The defence argues that the drug offences say little about the credibility of Mr. Douglas, but are highly prejudicial. Once again, I do not agree. Those offences cannot be considered to be prejudicial in a case such as this where practically all of the lay witnesses are involved with drug abuse and are members of what could be described as the Chilliwack drug abuse milieu. The jury is already fully aware of that, including the convictions of almost all of these witnesses, for drug offences. The jury will not be the slightest bit surprised, perturbed or affected by the fact that Mr. Douglas also has prior drug offences. [33] Further, I expect that Mr. Douglas is likely to acknowledge that the altercation or argument between himself and Mr. Blackmon that seems to have been the genesis of the shootings was itself in respect of a drug robbery that Mr. Douglas was at least in some way associated with. So once again in that context the prior drug offences cannot be seen as prejudicial. [34] In this case, the defence has attacked the character and credibility of the material Crown witnesses, and also the character of the two deceased victims, Blackmon and Belcourt. The argument will be made, I expect, that the victims Blackmon and Belcourt had a propensity for violence. In that respect the defence relies upon principles of law set out in R. v. Scopelliti (1981), 34 C.C.C. (2d) 481, a decision of the Ontario Court of Appeal. I observe that that case was applied and discussed by our Court of Appeal in R. v. Hamilton, 2003 BCCA 490, at paragraphs 34 and following. [35] So the defence has repeatedly brought out evidence of the alleged reputation for violence of, in particular, Mr. Blackmon, suggesting that Mr. Blackmon had a well-earned reputation as a drug-world enforcer. The Crown did not oppose the introduction of that evidence. [36] The defence has also brought into evidence the criminal record of Mr. Belcourt, including a youth record conviction for manslaughter. [37] The evidence also has disclosed already the criminal records of Crown witnesses Dalke, Hilliard, Prince, Lajeunesse and Berard. Ms. White, almost miraculously, seems to have no criminal record, but was cross-examined extensively on her criminal lifestyle as a drug dealer. [38] The criminal records of Blackmon and Belcourt, as I said, have been brought into evidence. Therefore in this case the evidence of the accused's own criminal record is necessary in order to avoid leaving the jury with a distorted view of the evidence as it relates to criminal records and criminal behaviour of the accused and the Crown witnesses. [39] The defence argues that, even without the criminal record of the accused being before the jury, the jury would not form a distorted view of Mr. Douglas. The defence argues that the jury would not form the view that Mr. Douglas is a person of unblemished character, while the Crown witnesses are not. [40] However, the evidence about the character of Mr. Douglas has been deliberately and carefully limited, insofar as is possible in the circumstances of this case. I allowed limited evidence regarding prior discreditable conduct of Mr. Douglas on the night in question, for limited purposes only. [41] The jury is likely to conclude that Mr. Douglas abused drugs, like practically all of the lay witnesses in this trial, and may have been involved to some extent in a criminal lifestyle, but there is no actual evidence of criminal involvement on the part of Mr. Douglas. Therefore, as I said earlier, it is, in my view, necessary for the jury to have the criminal record of Mr. Douglas in order to have a better appreciation of the relevant facts as they go to credibility in this case. [42] The defence argues that disclosure of the most recent offence -- possession of a weapon contrary to court order -- may lead the jury to conclude that with respect to the day in question, there is an uncharged firearms offence. In my view, if that thought occurs to the jury, it would be of little or no consequence to them, and in any event would be captured by the general instruction that they will receive as to the limited use that they can make of the criminal record evidence of the accused. [43] The application, as I said, is denied. "Verhoeven J."